244 F.

2d 854

A. W. HAWKINS, Incorporated, Appellant,

v.
UNITED STATES of America, Appellee.
No. 7396.

United States Court of Appeals Fourth Circuit.

Argued April 1, 1957.
Decided May 15, 1957.

John Douglas Clark, Falls Church, Va., for appellant.

A Andrew Giangreco, Asst. U. S. Atty., Arlington, Va. (L. S. Parsons, Jr.,
U. S. Atty., Norfolk, Va., on brief), for appellee.
Before PARKER, Chief Judge, SOBELOFF, Circuit Judge, and
WILLIAMS, District Judge.
SOBELOFF, Circuit Judge.

A motor carrier, A. W. Hawkins, Inc., having been convicted on an information

containing seven counts charging violations of Section 322(g) of Title 49
U.S.C.A., by wilfully and knowingly altering and falsifying records required to
be kept by the regulations of the Interstate Commerce Commission, brings this
appeal.

The appellant corporation, whose headquarters are in Culpeper, Virginia, is the

holder of an Interstate Commerce Commission certificate of convenience and
necessity, and is engaged in hauling various commodities over regular routes.
The regulations of the Interstate Commerce Commission require every driver of
a vehicle for an interstate carrier to make a daily log showing the actual time
spent by him in connection with the work of the carrier. The specific charges
are that the appellant altered and falsified the logs of Burgess Leake, who
operated its milk run from Culpeper to Washington, D. C. This truck carried no
other commodities.

I.

As the appellant challenges the legal sufficiency of the evidence, we turn first
to this question. Carbon copies of the logs, which the driver retained as required
by the regulations, were loaned by him to a government investigator, who, on
comparing them with the original copies in the possession of the employer,
found certain discrepancies. It was apparent on inspection, and not disputed at
the trial, that the employer's original copies contained alterations not appearing
in the driver's copies. Thus, on seven separate dates specifically charged in the
indictment, the unaltered record in the driver's possession shows total driving
and other on-duty time of from eleven to thirteen hours each day, while the
original copy of the record, as altered in the defendant's office, after it was
turned in by the driver, showed totals of only ten hours worked on each of these
days. The office clerk, who made the alterations, testified that she did so upon
instructions of the Vice President and General Manager of the company. The
defense was that the alterations were not intended to falsify true entries, but to
correct false ones.

A time clock was also maintained by the appellant, which its drivers were
required to punch morning and evening; and the time clock records agreed
substantially with the driver's copy and not with the alterations made by the
appellant upon its copy. The appellant sought in the District Court to impeach
its time clock records, claiming that sometimes employees set the clock back or
forward, or had other employees punch the clock for them in their absence.
However, this and the other surrounding circumstances, such as conflicting
statements said to have been made to the Labor Department's investigators by
the defendant's officers, raised a purely factual issue for the jury.

Beyond question, the evidence furnished a sufficient basis for submitting to the
jury the issue whether the alterations were made in good faith to correct a
record believed to be erroneous, or with wilful intent to falsify. The Court's
charge meticulously and correctly instructed the jury that the mere alteration, if
made with honest purpose, would not justify a finding of guilt, and that before
there could be a conviction it was necessary for the jury to be convinced
beyond a reasonable doubt that the alteration was made with knowledge on the
defendant's part that the log as changed would not speak the truth. It is, of
course, proper to draw inferences as to intent from the circumstances under
which an act was done and from subsequent conduct and statements, for that is
usually the only way a state of mind can be proved; direct proof is seldom
available.

II.
6

After the trial the foreman of the jury, in a letter written "after considerable

deliberation," communicated to the District Judge the juror's feeling that the
jury was confused and that the conviction was based primarily on suspicion
rather than on known facts and on the Court's instructions. A motion for a new
trial was predicated upon this letter. Such attempts to impeach verdicts by the
declarations or testimony of jurors are not unknown, but are rarely successful.
There are practical considerations of high importance. It would introduce
elements dangerous to fairness and impartiality in the judicial process to allow
jurors to impair their verdicts after they have dispersed and opportunity has
been given for the operation of influences that had been carefully guarded
against in the courtroom. Accordingly, the rule, from which deviation is seldom
permitted, is that "the testimony of jurors should not be received to show
matters which essentially inhere in the verdict itself." Hyde v. U. S., 225 U.S.
347, 384, 32 S.Ct. 793, 808, 56 L.Ed. 1114; Rakes v. U. S., 4 Cir., 169 F.2d
739, 745.
7

The Court here denied a new trial. We think its action was correct; undeniably
it was not an abuse of judicial discretion. On a motion for a new trial, the
District Judge may in his discretion set aside a verdict if he deems it in the
interest of justice to do so, and the exercise of such discretion is ordinarily
unreviewable. Trout v. Cassco Corp., 4 Cir., 191 F.2d 1022.

III.
8

The defendant argues that it is in any event not subject to the provisions of
Section 322(g) of Title 49 U.S.C.A., which makes it a criminal offense
knowingly and wilfully to falsify, destroy, mutilate, or alter any report or record
required to be made or kept. The reason advanced is that Title 49, 303(b),
U.S. C.A., exempts certain classes of carriers and that, particularly, Subsection
303(b) (6)1 exempts motor vehicles used in carrying agricultural commodities
and fish, if the vehicles are not used in carrying any other property or
passengers for compensation. It is claimed that an agricultural commodity,
milk, was the only article carried by the truck driven by Burgess Leake, the
defendant's employee whose report or log was altered by the defendant. It is
asserted, therefore, that the act of alteration could not constitute a crime.

We do not agree, however, that the exemption is so broad, for it is in terms

made inapplicable to those provisions that relate to "qualifications and
maximum hours of service of employees and safety of operation or standards of
equipment." Carriers of agricultural commodities are not exempt from keeping
proper logs and other records pertaining to hours of service. The keeping of
such records is directly related to the matter of hours worked by the truck
drivers, which in turn has a recognized relation to safety. Attempts by

regulation and by legislation to protect the public from the hazards of vehicle
operation by fatigued drivers are too familiar to require us to labor the point.
Where, as here, the language of the statute is clear and unambiguous, we have
no occasion to consider the statement, to which we are referred, made by a
witness appearing before the Congressional Committee, who, speaking of the
exempting amendment, may have indicated a broader interpretation of the
exemption. The plain language of the statute governs.
10

We find no error in the proceedings of the District Court, and its judgment is

11

Affirmed.

Notes:
1

303(b):
"Nothing in this chapter, except the provisions of section 304 of this title
relative to qualifications and maximum hours of service of employees and
safety of operation or standards of equipment shall be construed to include * * *
(6) motor vehicles used in carrying property consisting of * * * or agricultural
(including horticultural) commodities * * *."
Title 49, 304, provides in relevant part:
"Powers and duties of commission (a) Powers and duties generally
"It shall be the duty of the Commission
"(1) To regulate common carriers by motor vehicle as provided in this chapter,
and to that end the Commission may establish reasonable requirements with
respect to continuous and adequate service, transportation of baggage and
express, uniform systems of accounts, records, and reports, preservation of
records, qualifications and maximum hours of service of employees, and safety
of operation and equipment."